After publishing our first article on key clauses in an agreement with a scheme operator from a retailer’s perspective (Agreement with a deposit return scheme operator – four key clauses a retailer must check), we decided to discuss selected issues that an entity placing products in beverage packaging on the market—a producer or importer—should consider when contracting with an operator.
Readers wishing to learn more about joining the scheme should read How should a beverage producer prepare for the deposit return scheme? We discuss (i) the obligation to join, (ii) choosing an operator, (iii) reviewing contractual provisions on deposit settlements, termination and confidentiality, (iv) product labelling, and (v) reporting.
1. The agreement’s commercial terms
From a business perspective, commercial terms are considerably more important than the contractual wording itself. They are often set out in annexes rather than the main agreement. There are currently seven scheme operators on the market. Before starting negotiations, it is therefore worth choosing the best commercial offer and only then focusing on the contractual provisions.
Given the numerous regulatory obligations, settlement issues including tax, and the novelty of the scheme, it is also worth getting to know the entities behind an operator and the personnel with whom you will work. The implementation challenges, combined with the relatively large number of operators, suggest that some may be unable to withstand competition after the initial operating period and may cease trading.
2. Ownership of recyclate—rules for acquiring raw materials
The legislation provides that the scheme operator owns waste generated from packaging covered by the scheme, namely PET bottles and cans, collected within the scheme it operates.
Regardless of interpretative doubts over the scope of ownership of collected waste, the operator will be able to sell materials, including recyclate, collected under the scheme and use the proceeds to finance it. Producers using recycled materials to manufacture new packaging can agree with the operator on the terms for acquiring them. The agreement may therefore regulate a right of first refusal over the materials and potentially favourable sale terms.
The scheme’s regulations do not give preferential treatment in this respect to producers that are shareholders in an operator. It therefore appears that all entities contracting with an operator should be treated equally.
Access to recyclate is particularly important given EU requirements, including the PPWR Regulation[1], which will take effect in the coming years, concerning the use of recycled materials in new packaging.
3. The transitional period when changing operators
The agreement should address a producer’s decision to change operators and terminate the existing agreement. In addition to the termination mechanism itself, it should regulate a transitional period, after which all deposit settlements will be handled by the new operator. This includes the existing operator’s obligation to provide the new operator with all necessary information to ensure a smooth transition between schemes.
4. Tax settlements
As a professional entity authorised to conduct its activity, the operator should support a producer—often unfamiliar with all the scheme’s rules—in correctly fulfilling statutory obligations.
The operator is also the VAT remitter for VAT on unclaimed deposits. It must settle that VAT with the tax office, even though the taxable person is the entity placing products in beverage packaging on the market—the producer—which in turn has record-keeping and reporting obligations.
The contractual provisions should regulate this arrangement and protect the producer where the operator fails to perform its tax obligations or performs them incorrectly.
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Visit our page devoted entirely to the deposit return scheme in Poland to find out how we can help. Our expert team is ready to conduct a detailed contractual audit, identify risks and negotiate terms that effectively protect your interests.
Signing an agreement with a scheme operator is one of the most important business decisions an entity placing packaging on the market must make when joining the deposit return scheme.
[1] Regulation (EU) 2025/40 of the European Parliament and of the Council of 19 December 2024 on packaging and packaging waste, amending Regulation (EU) 2019/1020 and Directive (EU) 2019/904, and repealing Directive 94/62/EC (OJ L, 2025/40).
